One of the things I never expected to read was a promise by any United States official that a potential defendant in a criminal prosecution by our federal courts "will not be tortured."

The idea that the Attorney General of the United States of America
would send such a letter to the representative of a foreign government,
particularly Russia under the leadership of a former KGB official, was
so preposterous that I thought the first news report I read about
Attorney General Holder's letter concerning Edward Snowden was satire.
The joke, however, was on me. The Obama and Bush administrations have so
disgraced the reputation of the United States' criminal justice system
that we are forced to promise KGB alums that we will not torture our own
citizens if Russia extradites them for prosecution.

The standard joke that came to mind when I read Holder's letter was
the bartender who brings out glasses to three customers and asks "which
of you ordered his whiskey in a clean glass?" We take it for granted
that no restaurant or bar will knowingly serve us our drinks in a dirty
glass. I always took it for granted that no U.S. attorney general would
knowingly allow a criminal suspect in U.S. custody to be the victim of
torture, raped, branded, or a host of other forms of brutality.(...)

More likely, Holder is under so much pressure from the intelligence
"community" to punish Snowden that he thought he was being clever by
promising Russia that we would not torture our own citizens -- in this
particular case. Holder phrased his explanation in a manner that
suggests he was trying to be clever: "Torture is unlawful in the United
States." "Gitmo," of course, is not "in the United States." The
locations of the many secret prisons the U.S. established in other
nations were chosen so that we could torture suspects. The infamous
historical parallel for this is that it was unlawful to hold slaves in
England -- but England could dominate the Atlantic slave trade and hold
millions of slaves in the Caribbean islands because slavery was unlawful
only "in" England under English law.

More subtly, note that Holder says that torture is "unlawful" -- not
"illegal." An act that is merely "unlawful" cannot be prosecuted as a
crime. It may provide the basis for a civil suit. An "illegal" act can
be prosecuted. After World War II, the United States prosecuted
members of the Japanese military for torturing U.S. POWs (particularly by "waterboarding" our men). Those found guilty received severe sentences, often execution by hanging. (...)

Holder's letter promising the Russians that we would not torture Snowden
also raises a practical question for the defense bar. Is it malpractice
for defense counsel not to demand written assurances from the U.S.
attorney general in any extradition case that the United States will not
torture the suspect -- in any nation? Do defense lawyers need to
extract a written promise that the suspect will not be assassinated by
the U.S. prior to trial? How about a promise that the United States
will not hold the suspect's family hostage (or worse) if they agree to
waive extradition? It is obscene that Holder promised not to torture
Snowden, but the underlying obscenity is that the United States did
torture suspects and Holder has refused to prosecute those who ordered
and conducted the torture. When a nation engages in torture, the
consequences for its honor are long-standing and lead to a series of
disgraces.